MS, Application By Prosecution for Leave To Appeal

Under the Criminal Attempts Act 1981, whether conduct is more than merely preparatory is a fact-sensitive question. The court must determine whether the defendant has moved beyond getting ready or putting themselves in a position to offend and has embarked on the crime proper. No single factor, including geographical proximity, is a universal test. Proximity may matter for offences requiring direct contact with a target, but it may carry less weight in attempted parental abduction. For that offence, execution may begin while the defendant is still some distance from the port or airport. The relevant inquiry is whether, considering the offence's ingredients and all the circumstances, the acts are sufficiently close to the final act to form part of its execution.

MS pleaded guilty to forgery and was later tried for attempting to abduct her 15-year-old daughter from the United Kingdom, contrary to the Criminal Attempts Act 1981 and the Child Abduction Act 1984. At the close of the prosecution case, the Recorder ruled that the conduct remained merely preparatory because MS had been stopped about 85 miles from Dover. A not guilty verdict was directed. The prosecution gave the required acquittal undertaking and applied under section 58 of the Criminal Justice Act 2003 for leave to appeal. The central issue was whether the evidence was capable of showing that MS had taken steps which were more than merely preparatory and had attempted the offence.

Application granted. In the single judgment of Lord Justice Fulford VP, the court reversed the Recorder's ruling and ordered the proceedings to resume by way of a new trial before a different judge.

1. Section 1(1) of the Criminal Attempts Act 1981 requires intent to commit the substantive offence and an act more than merely preparatory. The boundary is fact-sensitive. The authorities, including R v Ian John Gullefer ([1990] 1 WLR 1063), R v Geddes ((1996) Crim LR 894-896) and Moore v DPP ([2010] EWHC 1822 (Admin)), distinguish getting ready or putting oneself in a position to offend from embarking on the crime proper. Mens rea must not be conflated with the separate requirement of a sufficient actus reus, as explained in Mason v Director of Public Prosecutions ([2009] EWHC 2198 (Admin)).
2. Geographical proximity is not a uniform test. It may be important in offences involving a direct physical attack or entry into premises, as illustrated by R v Campbell ((1991) 93 Cr App R 350). Child abduction is materially different. The execution of an attempted parental abduction may begin at a considerable distance from the port or airport. The question must be determined by the ingredients of the offence and all the facts.
3. The evidence showed that MS had forged the necessary permission document, possessed the relevant passports and one-way tickets, booked accommodation for the journey, packed and loaded the car, left home with the children, and travelled towards Dover. Viewed together, these acts were immediately preceding the final act necessary to complete the plan. They were part of its execution and were more than merely preparatory. It was open to the jury to convict. The distance remaining to Dover was essentially unimportant in the circumstances.

1. Court of Appeal (Criminal Division): On the prosecution's application under section 58 of the Criminal Justice Act 2003, the court granted leave, reversed the ruling as wrong in law and ordered a new trial before a different judge: [2021] EWCA Crim 600.
2. Crown Court at Stoke-on-Trent: The Recorder upheld a submission of no case to answer, directed a not guilty verdict on the attempted child-abduction count and refused leave to appeal.